' This Constitutional petition is instituted to impugn the order, dated 28-9-1998 passed by the learned Additional Sessions Judge, Sargodha i.e, respondent No,1 on the ground that the same being illegal and without jurisdiction be set aside.
2. The brief facts leading to the institution of this petition are that the petitioners/plaintiffs had filed a suit for declaration that they were the users of the pathway in dispute for the last 21 years passing through the land owned by the respondent No,3 defendant (Moula Bukhsh). It was prayed that respondent No,3 defendant be restrained from dismantling the aforesaid pathway by raising construction over it. An interim injunction was granted by the learned trial Court in their favour.
During the pendency of the proceedings, the petitioners/plaintiffs filed an application for contempt that respondent No,3/defendant had dismantled the aforesaid pathway by raising construction over it. The learned trial Court issued notice for contempt againsC respondent No,3/defendant that the latter had raised construction over the pathway and that the same be removed. The interim order passed by the learned trial Court for the removal of disputed construction was challenged in the appellate Court. The appeal came up for hearing before the learned Additional District Judge, Sargodha, who vide his order, dated 30-4-1998 set aside the impugned order passed by the learned trial Court with the direction that the matter be decided afresh after issuing notices to the aggrieved parties. It was also directed by the learned Additional District Judge, Sargodha that the parties and the learned counsel shall appear before the learned trial Court on 8-5-1998. In the meantime the petitioners/plaintiffs moved an application before the learned Deputy Commissioner/Collector, Sargodha against the defendant/respondent No,3 that the latter be directed to remove the aforesaid construction as it was causing obstruction to them to use the pathway which they had been using in the past. The learned Deputy Commissioner/Collector, Sargodha vide his order, dated 26-5-1998 directed that the petitioners/plaintiffs and others be allowed to use the pathway temporarily till the matter was finally decided by the civil Court.
Against that order the respondent No,3/defendant (Moula Bukhsh) filed revision petition before the learned Sessions Judge, Sargodha, which was decided vide impugned order, dated 28-9-1998, whereby the order passed by the learned Deputy Commissioner/Collector, Sargodha was set aside on the ground that the matter did not relate to public nuisance and the parties had already gone in civil litigation before the Court of competent jurisdiction.
3. The learned counsel for the petitioners/plaintiffs has contended in this writ petition that the order passed by the leaned Additional Sessions Judge, Sargodha was illegal and without jurisdiction as it was purely temporary order, in order to redress the public grievance that the pathway in question be allowed to be used by the petitioners/plaintiffs temporarily till the question was finally decided by the learned civil Court. It was, therefore, submitted that the learned Additional Sessions Judge had no jurisdiction nor he had power while dealing with the revision petition to set aside such an order which was passed purely in the interest of general public and also to avoid any danger to the tranquillity and peace in the vicinity.
4. I have considered the foregoing submissions, and have also gone through the documents placed on record. First of all, it is an admitted fact that the dispute regarding the pathway is purely between the petitioners/plaintiffs and respondent No,3/defendant, in respect of the disputed land.
It is also an admitted fact that the pathway in question passes through the land owned by the aforesaid respondent/defendant. Even the Deputy Commissioner/Collector, Sargodha in his order, dated 26-5-1998 made the following observations while concluding his order:-- ' "Thus, in the circumstances, petitioners cannot claim the restoration of same passage as a matter of legal rights. Thus, the correction of entry of Ghair Mumkin path, during the Crop Rabi, 1996 onward is allowed in respect of Maula Bakhsh. Since this matter is also sub judice in the civil Court and jurisdiction inherent with the civil Court, this Court has no competence to create the passage, while at the same time, the petitioner has no other passage. They have numerous deras in the immediate vicinity of the land of respondent. They will suffer great inconvenience due to non- availability of the passage and till such the matter is finally resolved by the civil Court, it is compassionate case and in the interest of justice, it would be appropriate to allow the petitioners namely Muhammad Akram, and others to use the passage which had been under their use temporarily till such the matter is finally decided by the civil Court. Respondents are directed to restore the passage till decision of the case by the civil Court."
' It follows from the above order of the Deputy Commissioner/Collector, Sargodha that even he had come to the conclusion that petitioners/plaintiffs had no legal right to use the passage in question nor they could claim for its restoration to them. However, on compassionate ground respondent/defendant was directed to restore the passage till the decision was given by the civil Court. It also follows from the,above order that the parties had already gone to the civil Court in respect of the disputed pathway, which has plenary jurisdiction to deal with such dispute. In such a situation, it being a private nuisance the Deputy Commissioner/Collector, Sargodha was ill advised to proceed under section 133, Cr.P.C. To direct the respondent/defendant to allow the use of the passage not only to the petitioners/plaintiffs but also to others with whom there was no dispute nor they were party before the civil Court. In such a way the Deputy Commissioner/Collector, Sargodha had travelled beyond his jurisdiction to allow the user of the passage on compationate ground instead of proceedings strictly in accordance with law, to determine the question of public nuisance or in directing the respondent/defendant to remove the construction if any. The order of the Deputy Commissioner/Collector, Sargodha was also bad in the eyes of law as the restoration of the passage was already taken cognizance of by the civil Court and the petitioners/plaintiffs having failed in appeal before the learned Additional District Judge, Sargodha tried to bypass the normal legal remedy with the object of defeating the order passed by a Court of competent jurisdiction by moving a petition under section 133, Cr.P.C. Which, in fact, had no application to the facts of the case. The order of the learned Deputy Commissioner/District Magistrate, Sargodha not legally sound was rightly set aside by the learned Additional Sessions Judge, Sargodha vide the impugned order, dated 28-9-1998 which-is the subject-matter of this writ petition. This order of the learned Additional Sessions Judge, Sargodha does not suffer from any patent or latent illegality or factual defect so as to call for interference in the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic. Republic of Pakistan, 1973. The writ petition being meritless is dismissed in limine.